ALSCON Crisis: BFIG begins contempt proceedings against BPE, DG

BFI Group Corporation on Tuesday began contempt proceedings against the Bureau of Public Enterprises and its Director General, Alex Okoh, over their alleged continued defiance of the 2012 Supreme Court order on the ownership of the Aluminium Smelter Company of Nigeria (ALSCON).

The National Council on Privatisation declared the Nigerian-American consortium as the winner of the bid for ALSCON in 2004 but a legal tussle has frustrated its takeover of the plant.

On March 27, 2019, counsel to BFIG, Patrick Ikwueto, a senior advocate of Nigeria (SAN), wrote to Mr Okoh to frown at “BPE’s introduction of strange and unilateral terms to the mutually agreed share purchase agreement (SPA) of June 2004” approved by the Supreme Court in its July 6, 2012 judgment.

Mr Ikwueto demanded the immediate and unconditional compliance with the judgment as affirmed in the January 11, 2019 ruling of the Court of Appeal.

Failure to meet his demand, Mr Ikwueto threatened to commence contempt proceedings against Mr Okoh and BPE by issuing Forms 48 and 49 from the Federal High Court.

Mr Ikwueto accused Mr Okoh and BPE of conspiracy to frustrate the enforcement of the July 6, 2012 order of the Supreme Court on the ownership crisis in ALSCON.

When PREMIUM TIMES contacted Mr Okoh for his response, he said he welcomed any action Mr Ikwueto or his client, BFIG will take over the matter.

“If that is what he is threatening to do, he is at liberty to approach any court of law for whatever relief he seeks,” he said.

BFIG MAKES GOOD THREAT

On Tuesday, Mr Ikwueto told PREMIUM TIMES he indeed served Mr Okoh the notice of the commencement of contempt proceedings, popularly called Form 48, from the Federal High Court, Abuja.

Under the Civil Process Act, Cap. 551, Laws of the Federal Capital Territory (FCT) and the Judgment Enforcement Rules, Form 48 usually contains a copy of the court order served on the respondent for mandatory compliance within 24 hours.

Where the respondent fails to comply, the court usually follows with the issuance of Form 49 for committal of the offender to prison for contempt.

A copy of the contempt proceedings obtained by PREMIUM TIMES on Thursday detailed the consequences of the continued disobedience of the Supreme Court order.

The document showed the court order served on the DG was signed for and received in his office on the same day.

Form 48 addressed to the Director-General, BPE of 11 Osun Crescent, Maitama, Abuja, was titled: “NOTICE OF CONSEQUENCE OF DISOBEDIENCE TO ORDER OF COURT.”

It read: “TAKE NOTICE that unless you obey the directions contained in this order dated 11/01/2019, you will be guilty of contempt of Court and will be liable to be committed to prison,” the notice dated April 2, 2019, read.

A similar contempt order dated March 29, 2019, was also attached to the latest order pursuant to the defiance against the Supreme Court order.

The BACKSTORY

The National Council on Privatisation declared BFIG winner of the bid for ALSCON in 2004. But, the bid was cancelled by BPE in controversial circumstances.

BFIG launched a legal battle to reclaim ALSCON from BPE. Eight years later, the Supreme Court on July 6, 2012, ruled in favour of BFIG and ordered BPE to enforce its rightful owner of ALSCON.

Despite the order, BFIG’s Chief Executive, Rueben Jaja, said BPE not only refused to obey, it continued to frustrate his company’s efforts to takeover ALSCON.

On January 11, 2019, the Appeal Court delivered judgment in Suit No. FHC/ABJ/CS/901/2013 and Court of Appeal No. CA//637/2014 between BPE and BFIG.

In the judgment, Justice Abdu Aboki reaffirmed the sanctity of the Supreme Court judgment and again ordered its full enforcement by BPE.

Specifically, the judge directed BPE to “provide the mutual agreed Share Purchase Agreement (SPA) (Exhibit BPE1) for execution by the parties.”

The agreement, Justice Aboki said, would “enable BFIG to pay the agreed 10 per cent of $410 million (about $41 million) within 15 working days from the date of the execution of the Share Purchase Agreement by the agreement dated May 20, 2004.

“The balance of 90 per cent of the bid price, shall be paid within 90 calendar days as ordered by the Supreme Court,” he said.

BFIG DEMANDS COMPLIANCE

Following the judgment, BFIG, on January 14, 2019, wrote to BPE to draw its attention to the consequential orders of the Appeal Court.

On January 25, BFIG wrote again to BPE to request for a clean copy of the SPA for execution in compliance with the subsisting judgment/orders of the Supreme Court and reinforced by the Appeal Court.

On February 4, Mr Ikwueto told PREMIUM TIMES BPE sent a response to BFIG, accompanied with a reproduced 16-page SPA (not the original approved by the Supreme Court) without any of the 17 annexures, acknowledged by Section 19.1 as key parts of the SPA.

DOWNLOAD DOCUMENT HERE

The annexures include a financial statement of ALSCON for the year ended December 31, 2004; ALSCON Post-Acquisition Plan; List of Liabilities of ALSCON; List of Facilities of ALSCON; List of land Plots of ALSCON; List of Compensation Scheme of Employees of ALSCON, and List of Employee Benefit of ALSCON.

The others include: List of Intellectual Property of ALSCON; List of Material Contracts of ALSCON; List of Banks of ALSCON; List of Government Authorities of ALSCON of ALSCON; Exhibit No. 1: Natural Gas Sales and Purchase Agreement; Exhibit 3: Federal Republic of Nigeria Officials Gazette, and Exhibit 4: Power of Attorney.

Mr Okoh’s letter said: “If the Bureau does not receive an executed copy of the mutual agreed Share Purchase Agreement, and payment of the agreed sum of $41 million, representing 10 percent of the bid price within 15 working days, the Bureau will consider itself as being no longer bound by the agreement.”

He said BPE would equally consider itself not contractually bound to BFIG if the balance of $369million is not paid within 90 calendar days of the payment of $41million.

On February 27, 2019, Mr Ikwueto said BFIG executed and delivered to BPE for countersignature the mutually agreed SPA (Exhibit BPE 1) with all annexures as provided by BPE in 2004 and reproduced in 2012 pursuant to Supreme Court judgment on July 6, 2012.

On March 4, he said BPE executed the SPA, “but removed ALL of the annexures, and returned an incomplete document to BFIG”.

On March 5, Mr Ikwueto said BFIG again wrote to BPE to demand the execution of the SPA, along with the agreed Annexures in 2004 and reproduced by BPE on October 16, 2012, after the Supreme Court order.

NO RESPONSE BPE, OKOH

When PREMIUM TIMES contacted Mr Okoh for his reaction to the reported commencement of contempt proceedings against him by BFIG, he did not answer several calls to his telephone. He also did not respond to an email and text message sent to him.

Also, BPE spokesperson, Amina Tukur-Othman, said she was not in a position to comment on the story, as she was out of office. She asked the reporter to contact her on Friday when she will be in the office.